Les Green on law, philosophy, and some other passions

Month: November 2018

Sequoya Yiaueki was raised as a Native American in the US–and often treated and humiliated as a Native American—only to find that, apart from a minute fraction of DNA inherited from his mother, he is nothing of the kind. Some family history together with a home DNA test kit showed that his grandfather was a Chinese immigrant to Philadelphia. The nice mix of genetic material he inherited contributed to his looking like a handsome aboriginal man, an appearance that was then certified by family legend and social hostility. But it was all false. That was not who he ‘really’ was.

Why do I say ‘false’? For one thing, because Yiaueki does. He feels his ‘Indian’ identity was ‘pulled out from under him’; he can no longer live a lie. Many of us know stories of this sort. I have a friend who, only in his fifties, discovered that he was adopted, and then had to go through a difficult assessment of his feelings towards the family that raised him, lovingly, but in a house of secrets and deceptions. Another friend, a distinguished lawyer, transitioned in his forties and now lives as a woman. Unlike many, she had good support from her family and law firm. Still, she now feels, sadly, that the earlier part of her life was somehow false. And many of us in what one might, in an innocently homogenizing way, call the self-aware-non-straight-population, remember a time when that fact about our selves came as a challenge to the people we took ourselves to be.

These cases suggest something important about the value of personal autonomy. We often defend it, and the political and social liberties that secure it, along the lines J.S. Mill and John Rawls did: its value lies in creating lives for ourselves, in making up identities, in choosing and pursuing ‘conceptions of the good’. But then the cases mentioned above seem to reduce the importance of autonomy. These are not cases about people choosing who or what to be; they are cases of people finding out who they already are.

To some, that shows that a liberal politics oriented to personal autonomy is wrong or shallow. Many philosophers back in the 1980s were tempted by that conclusion. Important features of our lives that orient us in the world and affect the way others respond to us are not chosen, created, or made-up; they are part of the context for any other choices we make. People do not– cannot– choose to be indigenous, or biologically related to the parents who raised them, or gay. That correct conclusion prompted a lot of loose talk about the importance of ‘community’ and ‘authenticity’. (And we are are starting to hear that all over again, with complaints about rootless ‘citizens of nowhere’.)

The talk was loose because, even in the face of obdurate facts about ourselves, choices do remain. For one thing, we can and often must choose what to do about those facts. We can acknowledge them or deny them; we can celebrate them or regret them; we can make them a more or less central part of our identity. So already there is a role for autonomy. And it is an important role. What we do about, or with, the people we find ourselves to be is often of enormous importance to our life prospects. Even in 2018, and even in ‘liberal’ western countries, the decision whether to come out of the closet can be dangerous for young people–and so can the decision to remain there.

But that reveals a second aspect to autonomy and the rights that secure it. It makes no sense to think about people ‘choosing’ to be indigenous, or biologically related, or gay (or black, or disabled…) but it is certainly both intelligible and important for people to want the freedom to discover whether they are any of these things. That can matter for exogenous reasons: for instance, knowing your genetic inheritance may be important to knowing your risks of a certain illness. More often, it is important for endogenous, psychological reasons. Most of us do not wish to ‘live a lie’. Sequoya Yiaueki had no desire to live ‘as if’ he were Native American once he found out that he was not. Of course, not everything need or should change in the face of a momentous discovery, but to simply go on as before is often impossible. This shows that we have, over a certain range, a powerful interest in knowing who we really are. And that puts a different gloss on many of the familiar liberal freedoms–freedom of speech, thought, inquiry, association etc.– they serve self-discovery as much as self-creation.

It is a matter of philosophical and political controversy whether a man can ‘choose’ to be or become a woman. (No one denies that men can choose to live as if they are women; and no liberal will deny their right to do so.) But even for the skeptics, it should not be a matter of controversy that the freedom to find out whetherone is a man or a woman (or a male or a female or neither) is of independent value. As we blunder through these complex debates, I notice that many who are hostile to transgender people are also hostile to anyone having the freedom to explore or test their gender identity. Another example. In Russia, in Ukraine, and among decadent religions in the US and UK, there is not only overt hostility to gay people, but also hostility to the freedoms of expression and association that help young people find our whether they are gay. (Here, that hostility expresses itself in arguments about sex education or pornography–both of which can lead children to discoveries about themselves that their parents would rather not be made.)

Personal autonomy is valuable for many reasons: some of them do bear, in the way Mill stressed, on our capacity for and success at self-creation; but others bear even on those aspects of ourselves that lie beyond choice. So we are not going to understand the importance of autonomy if we reduce it to debates about whether, or how far, some aspect of our identity is a matter of one’s own say-so. Freedom is more valuable than that.

It is important that speech (along with written communication and artistic expression) be fairly free. By ‘free’ I mean at least from governmental and other quasi-official constraint, and by ‘fairly’ I mean at least to the extent that it does not constitute fraud, defamation, incitement, group hatred, and the like. Why? For a number of overlapping reasons that do not add up to anything worth calling a ‘theory’ of free speech. Speech should be free because: it helps in the quest for reliable knowledge, because it supports good government, and because it serves individual development and autonomy. Also (marginally) relevant is the fact that speech that is forced, whether a confession extorted by threat, or a teleprompted lie bought with bribes, tends not to be very interesting as speech. Together, such considerations support the ‘free speech principle’, a principle that we invoke and contest as such, as a principle of political morality.

Most of the fair and feasible means of protecting speech are already well known. But once again, there is nothing here worth calling a ‘theory’. In one society, a judicially enforced bill of rights may prove vital, in another plural and competing media may be more important, in a third, the willingness of intermediary institutions (professions, churches, universities etc.) to silence the silencers may be key. And always and everywhere political culture is hugely important. As we see now in the US, in Poland, and in Hungary, when important political actors, including senior judges, will not or cannot make good faith efforts to protect speech, and instead use the principle merely for ideological money-laundering, set to whatever spin cycle their masters demand, no institutional remedies can be counted on to improve things.

But what about self-help? Two versions of this idea are worth considering. The first is a matter of hardening one’s defenses. Along with the Stoics and Jesus, the Buddha says that, even when subject to abuse, we should often turn the other cheek. We read in the Dhammapada, ‘As an elephant in battle bears the arrow shot from a bow; I will endure insult; For many people have poor self-control.’ Getting angry will often make you unhappy; trying to get even will keep you very busy. Of course, none of these texts or teachers intend that we should put up with anything and everything. But before returning fire, it is worth at least considering whether something is an offense against us or is merely offensive to us; it is worth learning the difference between something that is genuinely harmful to individuals or groups, and something that is hurtful to them. When silencers learn that the elephant can bear the arrow, perhaps they will aim elsewhere or, if we get lucky, lay down arms and proceed by other means.

The other aspect of self-help is more complex. To silence speakers one needs to find the target. So it is tempting to think that speech must be more free when speakers are harder to find, for instance, when they are anonymous. Especially in social media and the rest of the online world, anonymous comment is the norm. Perhaps some people think of Twitter as the acme of free expression. But Twitter should give us pause. What better example of the Buddha’s glum warning, that ‘Many people have poor self-control’? The availability, and scalability, of anonymous comment does allow people otherwise at risk of being silenced to get their message out. But anonymity also weaponizes poor self-control: fraud, incitement, hatred, and defamation–to say nothing of brutality, self-importance, and prideful ignorance– are everywhere that anonymous comment is standard, and it is not clear that what we innocently call the online ‘platforms’ have the means, let alone the will, to cure this.

I’m of two minds, then, when I read that my distinguished colleague Jeff McMahan plans to establish an online Journal of Controversial Ideas where anonymous authors can boldly set out their conjectures and refutations without fear (and, for that matter, also without favour–I can’t see the UK government rewarding anonymous research.) What then is to stop the JCI becoming a high-brow, polite, version of Twitter: poor self-control expressed in sentential calculus, or blind hatreds ‘proved’ by transcendental arguments or pseudo-Darwinian fairy-tales? The answer seems to be: peer review, up to the usual scholarly standards. But we’ve seen reason to worry about those standards. Moreover, if the authors are anonymous, how can we know whether the editors are publishing only their students, colleagues, or cronies? What if they are silencing people they think we’ve all heard enough of? And if that is what they are doing, the editors may be engaged in local, mini-, violations of free speech. Of course this is not comparable to governments prohibiting sex-education, or requesting teachers to report on whether and how they are teaching about Brexit. But it is the kind of thing that the government thinks is wrong with universities. In my own field, one of the best journals mostly publishes work by: those who have already published in that journal, those who were taught by those who have already published in that journal, those who have slept with anyone in the first two groups, and by members of the editorial board. (Some of this work is excellent, by the way.) Moreover, if someone wants to present in academic dress an ‘argument’ that homosexuality is an ‘intrinsic moral disorder’, or that the gender pay-gap expresses women’s ‘choices’, I think it would be decent of them to actually own the argument.

So I’m left with reservations. I also confess to wondering what the problem in universities actually is that it calls for anonymous journals. Unlike Jeff (and unlike our current government), I do not see a general, serious threat to free speech in our universities, though I agree that it is the case in some departments and perhaps in a few institutions. Nor do I accept his observation that, ‘The threats from outside the university tend to be more from the right. The threats to free speech and academic freedom that come from within the university tend to be more from the left.’ The serious risks to free speech in universities are nearly all from the right. Since Jeff and I teach at the same University, and since I know we share roughly the same concepts of ‘right’ and ‘left’, Jeff must have a different idea than I do of threats ‘from within the university.’ He must be thinking of the fairly powerless, if noisy, student groups, and of invitations denied people who have no right to our platforms in the first place. I am thinking of senior administrators, of fundraisers, and of those who manage the university’s real property. These people have real power, and everywhere I have worked some of them have not been afraid to use it, even if doing so leads to clear violations of free speech (and of academic freedom).

People with shit for brains have invited Stephen Bannon–the loathsome, racist, nitwit—to ‘debate’ David Frum in Toronto, at a regular public gig called the ‘Munk Debates’: a spectacle supported by the legacy of Hungarian-Jewish mogul Peter Munk, whose charitable ventures include a very distinguished cardiac centre in a Toronto hospital, and the less distinguished Munk School of Global Affairs at one of Toronto’s universities.

I’ve no idea what the Munk family thinks of this warm welcome to the nativist and anti-Semitic Bannon, coming as it does on the heels of the massacre of Jews in a Pittsburgh synagogue by a Trumpite-Bannonesque Neo-fascist. Maybe nothing. In a way, I get that. Ordinarily, we want the rich to endow good causes and then back off. So maybe the Munks are all cool with this. Still, I find it hard to believe that there isn’t a Munk or two vomiting in his bathroom, or locked in her bedroom, having panic attacks. I mean, we aren’t fooling around here: look at Brazil, Poland, and Hungary. Or, if you can bear it, glance at the reflection in the mirror, at the United States. These are evil people.

I am known (still, I think), as a kind of free speech fundamentalist. I’ve defended all sorts of ‘bad speech’, including wicked pornography; and I continue to do so. So as to avoid any doubt let me affirm: it would be wrong–though also unnecessary– for the Ontario or Canadian governments to ‘ban’ Bannon. But this remark comes far too late in the discussion. What on earth were people–one of them an academic–doing inviting Bannon in the first place? Are Canadians unfamiliar with his line of attack on minorities? Has Bannon been cheated out of every platform? Is he silenced? Is he the best, most intelligent, spokesperson for racial-nationalist-pseudopopulism? And what of Frum, the smarter, articulate, reformed defender of war criminals? Is Frum the best, most intelligent, spokesperson for a moderate, ‘liberal’, conservatism? This is incredible, in a cosmopolitan city whose residents include Joe Carens, Arthur Ripstein, Allen Hutchinson– even the tragi-comic Jordan Peterson. This was all wrong, from the get-go. Someone should be fired.

It is tempting to say that none of this matters now: few real people can afford the absurd ticket prices for the Munk Spectacles, and every else can predict, line for line, the ‘debate’. But that would be hasty. In the past, these have been broadcast on CBC and repeated elsewhere. That gives the debates–and is intended to give the debates–a kind of legitimacy. It is the time for that to stop. If the vile spew is regurgitated once again by Canadian media, it will sink not only the Debates, but also the CBC. And if that doesn’t matter to you, at least have some sympathy for hapless students (and faculty) at the ‘Munk School’–the ‘Bannon School’ as it may well become. Sure, it’s only a homonym; but don’t believe for five minutes that these Munk ‘Debates’ will not leak their stain on reputation of students and staff of the Munk ‘School’. After all, it was one of the Munk faculty who helped made this happen,

Freedom of speech is the freedom to speak (short of incitement, fraud, and hatred), when one is otherwise entitled to speak. Bannon and Frum are not otherwise entitled to this platform. The appalling invitation was, and is, an utter disgrace. It shames the Munk foundation; it also shames the city of Toronto.